The scheduled execution tonight of a convicted Dallas killer has erupted in controversy after reports that a new test shows Derrick Lamone Johnson may be mentally retarded.

The U.S. Supreme Court has banned the execution of anyone who is mentally retarded.

Angered by a decision of the state Board of Pardons and Paroles to confirm the execution of Johnson without reviewing the medical test information, then to stick with that vote in a second vote today, a group of lawmakers this afternoon asked Gov. Rick Perry to stop the execution slated for 6 p.m. tonight.

“It’s amazing to me how callous this system can be,” said state Sen. Juan Hinojosa, D-McAllen. “After a cursory review of the file, they vote to hang ‘em high no matter what the new information shows.”

Just as upset are Reps. Senfronia Thompson and Sylvester Turner, both D-Houston, and Terri Hodge, D-Dallas, who petitioned the parole board late Wednesday for a second vote based on the new medical test just received in the case.

“There is no reason why the State of Texas should rush to execute this man, before it can be confirmed whether or nothe is mentally retarded,” Turner said. “The parole board appears hell bent on sticking with their decision in favor of execution … It makes no sense.”

Johnson, 28, a 10th-grade dropout, was convicted in the 1999 slaying LaTausha Curry, who was kidnaped, beaten, suffocated and robbed of $10.

Thompson and Hodge said the parole board voted before lunch Wednesday to deny a reprieve, even though they had been advised that Johnson’s new attorney — who just joined the case in early April — was rushing to gather and submit new test results about his mental capacity.

“The test showed he is mildly retarded, in the low 70s,” Thompson said.

Hodge said the attorney got the information to the parole board at 12:38 p.m., after the deadline. While the board initially declined to review its decision, intense lobbying from Thompson, Turner and Hodge brought a review this morning.

In a letter to the lawmakers, Board Chair Rissie Owens said the seven-member board reconsidered a request from Johnson’s attorney for a 180-day reprieve — and decided against it.

“We’ve been through this before with Judge (Sharon) Keller (presiding judge of the state Court of Criminal Appeals) closing the doors at 5 p.m. and not allowing new information to be considered,” Hodge said. “It looks like the parole board tried the same thing … and now is just sticking with it’s earlier decision.

“We should do everything we can to consider all evidence, even new evidence, in these cases before we put someone to death,” she said. “When you talk about the ultimate penalty, we shouldn’t rush, even when it’s the last minute.”

Bruce Anton, Johnson’s attorney, and Owens could not immediately be reached for comment.

A spokesperson for Perry’s office was checking to see whether they had received a request for a stay of execution for Johnson. Perry has the authority to delay the execution, even if the parole board has recommended otherwise.

Last night at around 11 PM, we received a call from one of our sources at the Texas capitol regarding the person set for execution TODAY, April 30, in Texas. We were told that the lawyer for Derrick Johnson presented a report by a doctor to the Texas Board of Pardons and Paroles that Johnson has mental retardation, but the BPP voted to deny him a stay of execution.

Johnson's lawyer is taking the request for a stay to federal court, but in the meantime we have been asked to urge people to call Rissie Owens, chair of the Texas Board of Pardons and Paroles, and urge her to hold another vote on Johnson's case and issue a 180 day stay of execution to determine whether Johnson has mental retardation.

International and US law prohibits the execution of people with mental retardation. Johnson is scheduled to be executed TODAY. Our source at the capitol says that several legislators have also spoken with Risse Owens urging her to allow the board to vote again and issue a stay of execution, including State Rep. Terri Hodge, Rep. Senfronia Thompson and Rep. Lon Burnam.

Rissie Owens' Phone Number in Austin at the BPP is (512) 406-5852

Call Governor Perry and urge him to issue a stay of execution so that Johnson's mental retardation claim can be evaluated. Gov Perry's phone number is 512-463-1782.

At this point, making phone calls is the most effective way to get the message to Owens and Perry.

Forward this to your friends and let's bring this money to Texas to use against the death penalty in the state where on June 2 the governor will be in office for the 200th execution since he became governor.

Several Texas anti-death penalty groups are jointly entered in the Jenzabar Social Media Leadership Award contest for $3,000. The winner is the entry that gets the most people to comment on their entry by May 8, so to "vote", you leave a comment on the blog post of their nomination. They deserve to win because they have used social media tools very effectively to jointly mobilize against the Texas death penalty.

The cooperating groups are Texas Moratorium Network, Texas Death Penalty Abolition Movement, the Austin chapter of Campaign to End the Death Penalty, Texas Students Against the Death Penalty, Kids Against the Death Penalty, Students Against the Death Penalty and the Texas Death Penalty Education and Resource Center. They have a cause on Facebook called Abolish the Death Penalty in Texas. Each organization brings unique skills and experiences to the cause.

This alliance is a great example of how small organizations can have a remarkable impact way out of proportion to their funding by using social media tools to work together.

These grassroots groups work against the death penalty in the state that has executed more people than any other state. Texas has executed 436 people since 1982. The second place state has executed 103.

Monday, members of the groups were at the Texas capitol from 9:30 to 1 AM meeting with legislators about HB 2267 to end the death penalty under the Law of Parties, talking to the media and testifying at the hearing on the Sharon Keller impeachment resolution. In 2007, Texas Moratorium Network used online social media tools to gather around 1,900 signatures on a judicial complaint against Keller. Here is a video of a news report on Austin TV Monday night.

While at the capitol, they updated supporters online by posting to their blog, using Twitter and uploading video to Facebook and YouTube, all good examples of using social media tools to affect change and build a movement, and a good reason they should win the Social Media Leadership Award. Vote for them at the link below.

Go to the page and scroll down to the comment form. There are four fields, name, email, website (you can leave that blank or put in your own personal website or a website you like), and a text field for a comment.

This alliance is a great example of how small organizations can have a remarkable impact way out of proportion to their funding by using social media tools to work together.

Texas is a challenging political environment in which to work against the death penalty, but these groups have found a way to make significant progress against the death penalty by working together both offline and online using social media tools for education, outreach and grassroots organizing.

Tuesday, April 28, 2009

Yesterday, we were at the Texas capitol from 9:30 to 1 AM meeting with legislators about HB 2267 to end the death penalty under the Law of Parties, talking to the media and testifying at the hearing on the Sharon Keller impeachment resolution.

We spoke with members of the Calendars Committee about the Law of Parties and were encouraged by what we heard from a couple of offices. We also ran into Terri Hodge in the hall and exchanged a few hugs and thank yous.

While we were there, we updated our friends and supporters online around the world by posting to our blog, using Twitter and uploading videos while we were still at the capitol to Facebook and YouTube, all good examples of using social media tools to affect change and build a movement, and a good reason we should win the Social Media Leadership Award. Vote for us at the link below.

Several Texas anti-death penalty groups are jointly entered in the Jenzabar Social Media Leadership Award contest for $3,000. The winner is the entry that gets the most people to comment on their entry by April 30. To "vote", you leave a comment on the blog post at the link below.

On that page scroll to the bottom, where you see "Leave a Comment", then enter your name, your email address, a website (you can skip that one if you don't have a website or you can enter any website you like), then enter your comment in the large box. Hit submit and that's all. The entry with the most comments wins.

Our group at the capitol yesterday included Scott Cobb (whose birthday was yesterday), Gloria Rubac, Crystal Wilson, Terri Been (sister of Jeff Wood), Lawrence Foster (grandfather of Kenneth Foster,jr) and Kenneth Foster Sr (father of Kenneth). We were joined later at the hearing by Hooman Hedayati, who gave some great testimony to the committee on Sharon Keller.

Other videos we took during the day are on YouTube, including this video of the press conference.

We took this video of Lon Burnam around 12:30 AM last night. His message to our friends and supporters is "Call your state representative" and urge them to support the impeachment proceedings against Keller. We got the impeachment ball rolling last Fall when we approached Lon with the idea of impeaching Keller.

Democratic Rep. Lon Burnam said Monday he will employ rarely used rules to try to force the Texas House to vote on impeaching the state's highest criminal judge for her role in a 2007 death penalty case.

Burnam, of Fort Worth, said Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, is unfit to continue serving because of her pro-prosecution bias and because she turned away an after-hours appeal by lawyers for death row inmate Michael Richard, who was executed later that night.

"She's an embarrassment to the state, she's an embarrassment to the Republican Party, she's an embarrassment to her profession," Burnam said. "She needs to be off the bench."

Keller already faces a special trial on charges, filed by the State Commission on Judicial Conduct, that she violated her duty to protect Richard's access to the legal system. The trial, to begin Aug. 17, could determine whether the Republican judge remains on the court she joined in 1995.

Keller's lawyer said she did nothing to warrant removal from office.

"What she did is not a violation of the canons of judicial ethics or any state statute," lawyer Chip Babcock said Monday. "Last election millions of Texans thought she was the superior candidate for office. I don't think impeachment or the commission ought to override the will of the people."

It has been 34 years since an elected Texas official, District Judge O.P. Carrillo of Duval County, was impeached and removed from office for a bogus rental scheme.

Burnam's effort faces an uncertain future in a Republican-run House with heavy workload and less than five weeks remaining in the session. But the Fort Worth Democrat vowed to seek Keller's ouster two ways:

• Via the traditional path — a resolution to create a seven-member House committee to study whether Keller committed "gross neglect of duty" and, if appropriate, refer articles of impeachment to the House. If the articles are accepted, a Senate trial will follow to determine whether Keller should be removed from office. If formed, the committee could work beyond the legislative session's June 1 close, Burnam said.

The House Judiciary and Civil Jurisprudence Committee was to consider House Resolution 480 in a hearing late Monday, but a vote was not expected.

• If that resolution fails, Burnam said, impeachment can bypass the normal requirement of committee approval before a bill goes to the House floor. The motion must be recognized by House Speaker Joe Straus to proceed, Burnam said.

Eric Opiela, executive director of the Republican Party of Texas, accused Burnam of trying to circumvent procedures established by the Legislature to investigate judges.

Burnam is trying "to make a political spectacle out of an investigation that is working its way through the Judicial Conduct Commission," Opiela said.

AUSTIN, Texas — A Texas House lawmaker vowed Monday to try to force an impeachment vote on Court of Criminal Appeals Presiding Judge Sharon Keller before the legislative session ends June 1.

Keller, a Republican, is already facing judicial misconduct charges for failing to keep court offices open late the night of Sept. 25, 2007 when Michael Wayne Richard was executed. His lawyers have said that prevented them from filing an appeal.

Her misconduct trial is scheduled for August and could lead to her removal from the bench. But Rep. Lon Burnam, a Fort Worth Democrat, is trying to impeach her before then, hoping lawmakers will force her out.

"This woman should not serve another day," Burnam said.

The House Judiciary and Civil Jurisprudence committee is hearing testimony on Burnam's impeachment resolution Monday night, but he pledged to call for the vote by the full House sometime in the next few weeks regardless of what the panel does.

Burnam's resolution calls for the House to form a panel to investigate Keller for "gross neglect of duty and willing disregard for human life" and to ultimately send the charges to the Senate for a trial.

If the House accepts the articles of impeachment, Keller would be barred from serving on the bench until after her Senate trial, Burnam said.

Keller, who was not expected to testify before the House panel, has said the misconduct charges should be dismissed and that Richard's lawyers are to blame for missing his appeal.

Richard was convicted of the rape and murder of a Houston woman in 1986. Hours before his execution, the U.S. Supreme Court had agreed to review the constitutionality of lethal injection in a Kentucky case. Richard's lawyers hoped that would help them delay his case as well.

Although court offices were to close at 5 p.m., Richard's attorneys asked for a 20-minute extension because computer problems were delaying efforts to file a late appeal. When contacted at home by the court's general counsel, Keller said the office should remain closed.

Keller has said she was not told of the computer problem. She said Richard's attorneys should have known how to file late appeals with the judge on duty that night, a process they had used in other cases.

Keller's refusal to keep the court open outraged defense attorneys and civil rights activists. A group of lawyers, including a state lawmaker and a former appellate judge, filed complaints with the state Commission on Judicial Conduct, saying Keller had violated Richard's civil rights.

Burnam filed his resolution of impeachment on Feb. 16 and the judicial conduct commission filed formal charges three days later.

Keller's attorney, Chip Babcock, said the August trial is the proper venue for Keller's case.

"It seems to me that the trial is the better place to get all the facts out," Babcock said.

Time is running short for Burnam to get his resolution before the full House. Normal procedures require it first to be approved by the committee and have it scheduled for a floor vote.

Texas has not impeached a state judge since the 1970s when a series of judicial scandals led to ethics reforms. Burnam said his research shows that he can call for an impeachment vote from the entire House without prior committee approval.

Burnam said he'll first wait to see if he's got majority support in the 150-member chamber where Republicans hold a slim 76-74 majority. But he pledged to call a vote before the end of the session regardless of whether he thinks he can prevail.

I am an attorney in private practice in Austin inthe law firm of Herring & Irwin, L.L.P. My principalpractice area is the law of lawyering--which focuseson issues of legal ethics, legal malpractice, andprofessional responsibility for Texas lawyers. In1990, I wrote my first book, Texas Legal Malpractice& Lawyer Discipline, which I now update annually.Thus, I've been writing about and teaching legalethics for some 20 years. I also served two terms onthe Texas Supreme Court's Advisory Committee andserved as Chair of the Texas Supreme Court'sStatewide Task Force on Sanctions and also the StateBar's Committee for the Prevention of Legal Malpracticeand Grievances. I have served as an expert witness onlegal ethics issues for the State Bar of Texas, forthe Chief Disciplinary Counsel, for the Office ofthe Texas Attorney General, and for various privatelawyers and litigants. I've attached a copy of myresume to this testimony. I offer this testimonyon my own behalf and not on behalf of any otherperson or organization.

I appreciate this Committee's consideration ofH.R. No. 480, concerning the possible impeachmentof Judge Sharon Keller, and I respectfully offermy testimony in support of the Resolution. In myopinion, the conduct of Judge Keller, as reportedin the media and as charged in the "Notice ofFormal Proceedings" (hereinafter "Notice") inInquiry No. 96 before the State Commission onJudicial Conduct, clearly meets the constitutionalstandards for impeachment under Article XV of theTexas Constitution, as well as the standards forremoval of a judge or justice from office, asprovided in Section 1-a(6)A of Article V of theTexas Constitution.

Before I outline the specific allegations thatin my view meet those constitutional standardsfor impeachment and removal, I want to emphasizethree general points that I believe make thisResolution a particularly important matter forlegislative action.

First, if the published allegations are correct,Judge Keller was personally responsible forkilling a man on a day when he should not havedied. That is the most severe possible consequenceimaginable for judicial misconduct.1 I submit thatif that type of egregious judicial misconduct,with the most serious possible consequencesimaginable, does not require removal from office,nothing does. By comparison, the charges againstthe last judge impeached by this Texas House,Judge O.P. Carrillo, alleged misconduct thatincluded stealing groceries; using public fundsto pay ranch hands and other private employees;using public equipment on his ranch; filing afalse financial statement; having conflicts ofinterest; and conspiring to improperly influencea grand jury.2 The Texas Senate acquitted JudgeCarrillo on the impeachment article allegingstealing groceries, but convicted him on anarticle alleging conspiracy to collect governmentrental monies on non-existent equipment--anddismissed the other articles without a decision.3In short, the Texas Legislature convicted JudgeCarrillo and removed him from office for falserentals. He did not wrongfully cause anyone'sdeath, which is exactly what Judge Kellerallegedly did.

Second, based on Judge Keller's Answer filedin the Commission on Judicial Conductproceedings, and based upon the publishedremarks of her lawyer, it appears that sheis claiming that the lawyers for Mr. Richardwanted some extraordinary relief in the formof keeping the court clerk's office after 5:00p.m., and then those lawyers capriciously ornegligently chose not to follow other availableremedies that permitted an after-hours filing.If that is her position, I submit that herposition is simply not credible. The lawyerswho handled Michael Richard's case were withthe Texas Defender Service (TDS), which wasfounded in 1995 and is the most skilled,respected, and experienced organization inTexas providing representation to persons ondeath row. Their Board includes law schoolprofessors from Texas and across the countrywho are expert in death penalty law andrepresentation, including for example theCo-Director of the Capital Punishment Centerat the University of Texas School of Law, andthe Co-Director of the Death Penalty Clinic atBoalt School of Law. Professor Dow, who workedon the Richard case, heads the Innocence Projectat the University of Houston. He is a superbadvocate, and he knows how these cases work aswell as anyone in Texas. In short, in thisfield of law practice, they are the best andmost knowledgeable lawyers available. Theircommitment to justice is awe-inspiring andlegendary.

Third, I think it is very important that JudgeKeller's alleged misconduct took place in thecontext of a death penalty case. The death penaltyis the ultimate criminal punishment. From 2002 to2006, 40 percent of the executions in the UnitedStates took place in Texas; in 2007, over 60percent were in Texas; in 2008, over 50 percent.Whether you are for or against the death penaltyin Texas is irrelevant to the merits of the presentmatter. But those who support the death penaltywant that penalty administered fairly and legally.More than any other single act in the history ofTexas, Judge Keller's conduct in this case has heldthe death penalty and the Texas criminal justicesystem up to international scorn and ridicule. Ifyou google "Sharon Keller," you get over 42,000hits--and you find an almost unlimited number ofdenunciations of Judge Keller and our system ofjustice in Texas. We need to restore respect forTexas justice. The Legislature can do that now,promptly, and as the elected representatives ofthe people of Texas, you can speak with theauthoritative voice that this case requires.4

Turning to the grounds for impeachment, I notethat Section 2 of H.R. No. 480 identifies aspossible grounds for impeachment the following:

. . . gross neglect of duty and conducting herofficial duties with willful disregard for humanlife in connection with her actions on the eveningof September 25, 2007, including her apparentirresponsible refusal to abide by the prior practiceof the Texas Court of Criminal Appeals in order toreceive the appeal of Michael Richard, which conductmay have resulted in Mr. Richard's deprivation oflife without due process of law as guaranteed by theFifth Amendment to the Constitution of the UnitedStates and Section 19, Article I, Texas Constitution,by means of a potentially unlawful execution bylethal injection, and in the embarrassment of theState of Texas in a manner that casts severe doubton the impartiality of the Texas Court of CriminalAppeals and the entire criminal justice system ofthis state.

In one sense, the charge is broad: "gross neglectof duty . . . including . . . ." However, in factthe charge appears to be quite narrow, focusingon her actions during, at most, a few hours on asingle day--"in connection with her actionsoccurring on the evening of September 25, 2007."The charge fits well within the broadconstitutionally permissible framework forimpeachment in Texas, as enunciated at lengthby the Texas Supreme Court in Ferguson v. Maddox,263 S.W. 888 (Tex. 1924):

While impeachable offenses are not defined inthe Constitution, they are very clearlydesignated or pointed out by the term'impeachment,' which at once connotes the offensesto be considered and the procedure for the trialthereof. . . . 'Impeachment,' at the time of theadoption of the Constitution, was an establishedand well-understood procedure in English andAmerican parliamentary law, and it had beenresorted to from time to time in the formercountry for perhaps 500 years. It was designed,primarily, to reach those in high places guiltyto official delinquencies or maladministration.It was settled that the wrongs justifyingimpeachment need not be statutory offenses orcommon-law offenses, or even offenses againstany positive law. Generally speaking, they weredesignated as high crimes and misdemeanors, which,in effect meant nothing more than grave officialwrongs.

In the nature of things, these offenses cannot bedefined, except in the most general way. Adefinition can, at best, do little more than statethe principle upon which the offense rests.Consequently, no attempt was usually made todefine impeachable offenses, and the futility aswell as the unwisdom of attempting to do so hasbeen commented upon. . . .

When the Constitution of Texas was adopted, itwas done in the light of, and with a fullknowledge and understanding of, the principles ofimpeachment as theretofore established in Englishand American parliamentary procedure. TheConstitution in this matter of impeachment creatednothing new. By it, something existing and wellunderstood was simply adopted. The power grantedto the House to 'impeach,' and the Senate to try'impeachment,' carries with it, by inevitableimplication, the power to the one to prefer andto the other to try charges for such officialdelinquencies, wrongs, or malfeasances as justifiedimpeachment according to the principles establishedby the common law and the practice of the EnglishParliament and the parliamentary bodies in America.The grant of the general power of 'impeachment'properly and sufficiently indicates the causesfor its exercise.

It is said this construction of the Constitutionconfers arbitrary and unrestrained power on theSenate. Not so at all. There is no such thingunder our government as arbitrary power. As hasoften been said, it is a government of laws,and not a government of men. We mostemphatically repudiate the idea that any officermay be arbitrarily impeached. In the exercise ofits exalted jurisdiction, the Senate must proceedaccording to law. It must ascertain the law by anexamination of the Constitution, legal treatises,the common law and parliamentary precedents, andtherefrom determine the nature, elements, andcharacteristics of impeachable offenses, and, inthe light of reason, apply the principles soworked out to the facts of the case before it.This is not arbitrary power. It is the exerciseof judicial authority under the Constitution. . . .

Id. at 892. As the Texas Supreme Court emphasized,the impeachment remedy provided by the TexasConstitution is necessary for "the protection ofthe people from official delinquencies ormalfeasances." Id. Clearly, all citizens shouldbe entitled to protection from wrongful executionwithout due process of law, and all citizens shouldbe entitled to a fair chance to present their casesin court. If Judge Keller did what she is accusedof having done, it is difficult to imagine agreater judicial threat to the integrity of thecriminal justice system and to the rights andthe very lives of Texans whose fates are entrustedto that system.

In addition to the broad parameters for impeachmentexplained in Ferguson and the specific categoriesof charges outlined in the Resolution, thestandards for removal of judges and justices setforth in Section 1-a(6) of the Texas Constitutionalso are relevant. In pertinent part, that provisionstates:

Any Justice or Judge of the courts established bythis Constitution or created by the Legislature asprovided in Section 1, Article V, of thisConstitution, may, subject to the other provisionshereof, be removed from office for willful orpersistent violation of rules promulgated by theSupreme Court of Texas, incompetence in performingthe duties of the office, willful violation ofthe Code of Judicial Conduct, or willful orpersistent conduct that is clearly inconsistentwith the proper performance of his duties or castspublic discredit upon the judiciary oradministration of justice.

As stated in the Preamble to the Texas Code ofJudicial Conduct (hereinafter "the Code"), theCode is intended to "state basic standards whichshould govern the conduct of all judges and toprovide guidance to assist judges in establishingand maintaining high standards of judicial andpersonal conduct." One of the most fundamental andimportant precepts in the Code is Canon 2A, whichprovides as follows:

A judge shall comply with the law and should actat all times in a manner that promotes publicconfidence in the integrity and impartiality ofthe judiciary.

If, as the Commission's Notice has alleged, andas published reports indicate, Judge Keller willfullyand persistently failed to follow the Court'sExecution-day Procedures, she has violated thiscore principle of judicial conduct. The nationaland international condemnation heaped upon theTexas criminal justice system as a result ofJudge Keller's actions indicates that she hasnot acted in a manner "that promotes publicconfidence in the integrity and impartiality ofthe judiciary." That conduct also fits wellwithin the language of the Resolution, "grossneglect of duty and conducting her official dutieswith willful disregard for human life inconnection with her actions on the evening ofSeptember 25, 2007." If Judge Keller effectivelyforeclosed access to court, she also apparentlyviolated Canon 2A, and engaged in "gross neglectof duty," in violating Section 13 of Article 1 of theTexas Constitution, which provides that "[a]ll courtsshall be open, and every person . . . shall have remedyby due course of law." Furthermore, the same conductwould have violated Canon 3B(8) of the Code, whichprovides that "[a] judge shall accord to every personwho has a legal interest in a proceeding, or thatperson's lawyer, the right to be heard according tolaw."

For these reasons, I respectfully request that thisCommittee vote in favor of H.R. No. 480. I appreciateyour patience in considering my views.

As Director of a statewide civil rights nonprofitorganization, I respectfully urge passage of HR-480so that the House of Representatives may begin theprocess of considering the impeachment of JudgeSharon Keller for abuse of her office, one of themost important judicial positions in the state.

IMPEACHMENT INQUIRY NECESSARY AND PROPER

Attached to this testimony are the Notice ofFormal Proceedings (No. 96), Inquiry Concerninga Judge, before the State Commission on JudicialConduct and the Ethics Experts' Declaration, filedin that same matter. I need not repeat theallegations and statements in those documents, butI do accept, ratify, and incorporate them as partof my testimony.

I agree in all respects with the twenty-fourethics experts, who recently advised the Commissionof Judicial Conduct that Judge Keller is "guiltyof 'incompetence in performing the duties of office,willful violation of the Code of Judicial Conduct,[and] willful [and] persisted conduct that isclearly inconsistent with the performance of [her]duties.' In addition, her egregious misconduct'casts public discredit upon the judiciary [andupon the] administration of justice.' [footnoteomitted]" The same in my view supports impeachmentof Judge Keller or, more to the point, are morethan sufficient for this committee to recommendto the House that it appoint an impeachmentcommittee on this matter.

These charges, if true and I believe them to beso, are more than enough to support impeachment,but there is another reason, even stronger thanthe others -- Judge Keller essentially deprivedMichael Richard of his life for at least eightmonths, that is, she caused his life to be endedearly without due process. The victim of JudgeKeller's action was Doreen Anderson, Mr. Richard'sdaughter, who had a close relationship with herfather.

How does one quantify the eight months or morethat Ms. Anderson lost with her father? He mayhave been convicted of a crime, but she was not.

APPROPRIATE FOR HOUSE INVESTIGATION -- VOTERS'SOLE REMEDY

"The power of impeachment shall be vested in theHouse of Representatives." Tex. Const. art. XV,ï¿½ 1. At the time Texas adopted its constitutionin 1876, impeachment was well-established inEnglish and American parliamentary law. Fergusonv. Maddox, 263 S.W. 888, 892 (Tex. 1924).

Impeachment is designed to reach officials inhigh places who are guilty of "officialdelinquencies or maladministration." The offensedoes not need to be a statutory or common lawoffense. Impeachment offenses are generallyconsidered high crimes and misdemeanors, which atthe time the constitution was adopted meant graveofficial wrongs. Id..

Because of the nature of impeachment, theoffenses cannot be defined, but it is a generalprinciple upon which the offenses rest can bestated. Id. The U.S. Constitution definesimpeachment offenses as "treason, bribery, orother high crimes and misdemeanors" U.S. Const.art. 2, ï¿½ 4.

Many states mirror this language in their ownconstitutions, while others add "misdemeanorsin office," "maladministration," "oppression inoffice" and other similar offenses. Ferguson,263 S.W. at 892. The Texas Constitution adoptedthe existing and well-known principle ofimpeachment, as understood at the time. Id.

Impeachment is the only remedy andaccountability mechanism under the TexasConstitution. Judicial immunity shields judgesagainst state and federal litigation. We triedin the case of Judge Keller, and our federal suitwas dismissed for that reason.

Even though the Commission on Judicial Conduct isconsidering an action against Judge Keller, it mayor may not take appropriate action. However, theonly constitutional remedy is impeachment by therepresentatives of the people.

The framers of the 1876 Texas Constitution andthe voters who ratified it created a strongjudiciary. The 1876 Constitution deliberatelyfashioned a weak legislature and a weak governorbecause of past abuses of power. The judiciary wasthe one branch of government that kept power, andvery extensive power. The drafters of theconstitution felt that only judges could protectthe people against the government and moniedinterests taking away their rights. For that reason,the populist tradition of electing judges was framedinto our current constitution. The authors of theconstitution and voters wanted to elect their judgesto keep direct control over them so they would notbecome beholden again to the big financial interestsof the state and political caprice -- as they hadbeen in prior times when appointed by the governor.

Impeachment thus is the people's way of undoingthe election of a judge who has betrayed theirtrust and acted with "official delinquency," thatis, abused their office to the extent of violatingthe mandate to administer fairly and impartiallythe constitutions of the nation and of the state.

The charges against Judge Keller are sufficientlygrave that the House of Representatives has to dutyto formally consider them, and then act on them. Webelieve the ultimate conclusion of this processwould be impeachment by the House, trial by theSenate, and removal from office.

Whether Judge Keller is ultimately convicted orvindicated is for a later date, but the House mustat least be faithful to its obligation to formallyconsider and act on the substantial charges broughtagainst her.

There are lots of bills on the agenda, so we don't know what time they will get to the impeachment resolution. Come in the afternoon today and you will be able to sign in to support Keller's impeachment.

The resolution, HR 480 by Lon Burnam, would create a select committee in the House to investigate further whether Sharon Keller should be impeached for her refusal to accept an appeal 20 minutes after 5 PM for a person on the day of his execution.

If you believe that Keller should be impeached, please plan to attend and fill out a Witness Affirmation form in support of HR 480. Go to the capitol and sign a witness affirmation form in support of HR 480. It only takes five minutes to fill out the form, but you have to be there in person to fill it out and turn it in.

WHEREAS, The House of Representatives of the Texas Legislature has exclusive power to present articles of impeachment against a state officer under Section 1, Article XV, Texas Constitution, and Chapter 665, Government Code; now, therefore, be it

RESOLVED, That the House of Representatives of the 81st Texas Legislature adopt the following procedures to consider the impeachment of Judge Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, for gross neglect of duty and conducting her official duties with willful disregard for human life:

SECTION 1. SPECIAL COMMITTEE ON IMPEACHMENT. The House Special Committee on Impeachment composed of seven members of the House of Representatives shall be appointed by the Speaker of the House. The Speaker shall designate a committee member to serve as chair of the committee and a committee member to serve as vice-chair of the committee.

SECTION 2. INVESTIGATION; ARTICLES OF IMPEACHMENT. (a)

The committee shall conduct an investigation to consider whether to recommend that under Section 1, Article XV, Texas Constitution, and Chapter 665, Government Code, the House of Representatives adopt and present to the Texas Senate articles of impeachment against Judge Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, for gross neglect of duty and conducting her official duties with willful disregard for human life in connection with her actions on the evening of September 25, 2007, including her apparent irresponsible refusal to abide by the prior practice of the Texas Court of Criminal Appeals in order to receive the appeal of Michael Richard, which conduct may have resulted in Mr. Richard's deprivation of life without due process of law as guaranteed by the Fifth Amendment to the Constitution of the United States and Section 19, Article I, Texas Constitution, by means of a potentially unlawful execution by lethal injection, and in the embarrassment of the State of Texas in a manner that casts severe doubt on the impartiality of the Texas Court of Criminal Appeals and the entire criminal justice system of this state.

(b) The committee shall submit a report of its findings to the Speaker of the House and the full House of Representatives as soon as reasonably practicable, but not later than the 90th day after the date the committee is appointed. If the committee recommends impeachment of the judge, the report shall contain a draft of articles of impeachment.

SECTION 3. POWERS; ADMINISTRATION. (a) The committee shall meet at the call of the chair and may meet in executive session if approved by a majority of the members of the committee.

(b) The committee has all the powers granted to a standing committee under the Rules of the House of Representatives and under Subchapter B, Chapter 301, Government Code, including the power to issue process to procure testimony or other evidence.

(c) On the request of the committee, the House of Representatives or the Texas Legislative Council shall provide the staff necessary to assist the committee in carrying out its duties.

(d) The operating expenses of the committee shall be paid as determined by the Committee on House Administration.

SECTION 4. EXPIRATION. This resolution expires and the House Special Committee on Impeachment ceases to exist on January 1, 2010.

Saturday, April 25, 2009

Several Texas anti-death penalty groups are jointly entered in the Jenzabar Social Media Leadership Award contest for $3,000. The winner is the entry that gets the most people to comment on their entry by April 30, so to "vote", you leave a comment. We have a good chance to win this and we deserve to win because we have all used social media tools very effectively to jointly mobilize against the Texas death penalty.

Your comment won't show up immediately, because it seems like the comments are moderated by the Foundation, so they should update the comments from the weekend on Monday.

To help us win, you can just leave a short comment or a longer one on our entry. Go to the page and scroll down to the comment form. There are four fields, name, email, website (you can leave that blank or put in your own personal website or a website you like, such as the one of the sites of our anti-death penalty groups), and a field for your comment. Short comments could be like "nice work" "good job", "they are doing a great job", "impressive work, "I hope they win", etc etc. Several Texas anti-death penalty groups are entered jointly, so in your comment you can be specific to one group or say something general about all the groups.

I would like to nominate for The Jenzabar Foundation Social Media Leadership Award: a group of allied organizations in Texas that have been using social media to effectively work together against the Texas death penalty: Texas Moratorium Network, Texas Death Penalty Abolition Movement, the Austin chapter of Campaign to End the Death Penalty, Texas Students Against the Death Penalty, Kids Against the Death Penalty, Students Against the Death Penalty and the Texas Death Penalty Education and Resource Center. These groups have a cause on Facebook called Abolish the Death Penalty in Texas. Each organization brings unique skills and experiences to the cause. Decisions on how to use any award money will be made jointly by these organizations.

This alliance is a great example of how small organizations can have a remarkable impact way out of proportion to their funding by using social media tools to work together.

Texas is a challenging environment in which to work against the death penalty, but these groups have found a way to make significant progress against the death penalty by working together both offline and online using social media tools for education, outreach and grassroots organizing.

Texas is a large state, so it is vitally important for groups here to use social media tools effectively. In the future, we want to increase our capacity to work for human rights in Texas by finding new ways to expand our use of online social media tools in order to identify new activists and grow our movement to achieve legislative victories on policy and to organize campaigns to stop specific executions.

Most recently, these groups all worked together to get the Texas House Committee on Criminal Jurisprudence to approve the bill to end the death penalty under the Law of Parties. We continue to push for a vote on that bill in the full House. On Monday, April 27, we are holding our second Lobby Day of the year in order to meet with more legislators about the bill and on May 2 we are holding a march and rally for the Law of Parties bill in Austin. We also have worked together on the campaign to remove Sharon Keller and of course on the annual March to Stop Executions.

If you think these groups have been doing a good job using online social activism tools, especially considering that we are all-volunteer organizations, please vote for us in The Jenzabar Foundation Social Media Leadership Award by leaving a comment on our entry.

AUSTIN - The Texas House Committee on Judiciary and Civil Jurisprudence will hear public testimony on April 27th regarding a resolution to begin the impeachment of Chief Justice Sharon Keller of the Court of Criminal Appeals.

House Resolution 480 accuses Judge Keller of "neglect of duty" for declining to keep her office open past 5 pm to receive the final pleadings of condemned inmate, Michael Richard, on September 25, 2007.

Richard's appeal was based on announcements made by the United States Supreme Court the morning of the scheduled execution. Although Richard was executed that night, the Court of Criminal Appeals (over which Judge Keller presides) later granted two stays of execution based on the same arguments Richard's lawyers attempted to present.

If passed, HR 480 calls on the House of Representatives to form a committee to investigate Judge Keller for "gross neglect of duty and willing disregard for human life." If the House finds cause for impeachment, a trial would then be held in the State Senate.

"It's one thing for a banker to close shop at five o'clock sharp," said Rep. Lon Burnam, the principal author of the resolution. "But a public official who stands between a human being and the death chamber must be held to a higher standard."

Rep. Burnam will discuss his resolution to form a committee to investigate the impeachment of Judge Keller.

There are lots of bills on the agenda, so we don't know what time they will get to the impeachment resolution. Come in the afternoon on Monday and you will be able to sign in to support Keller's impeachment.

The resolution, HR 480 by Lon Burnam, would create a select committee in the House to investigate further whether Sharon Keller should be impeached for her refusal to accept an appeal 20 minutes after 5 PM for a person on the day of his execution.

If you believe that Keller should be impeached, please plan to attend and fill out a Witness Affirmation form in support of HR 480. Put April 27 on your calendar as a day to go to the capitol and sign a witness affirmation form in support of HR 480. It only takes five minutes to fill out the form, but you have to be there in person to fill it out and turn it in.

WHEREAS, The House of Representatives of the Texas Legislature has exclusive power to present articles of impeachment against a state officer under Section 1, Article XV, Texas Constitution, and Chapter 665, Government Code; now, therefore, be it

RESOLVED, That the House of Representatives of the 81st Texas Legislature adopt the following procedures to consider the impeachment of Judge Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, for gross neglect of duty and conducting her official duties with willful disregard for human life:

SECTION 1. SPECIAL COMMITTEE ON IMPEACHMENT. The House Special Committee on Impeachment composed of seven members of the House of Representatives shall be appointed by the Speaker of the House. The Speaker shall designate a committee member to serve as chair of the committee and a committee member to serve as vice-chair of the committee.

SECTION 2. INVESTIGATION; ARTICLES OF IMPEACHMENT. (a)

The committee shall conduct an investigation to consider whether to recommend that under Section 1, Article XV, Texas Constitution, and Chapter 665, Government Code, the House of Representatives adopt and present to the Texas Senate articles of impeachment against Judge Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, for gross neglect of duty and conducting her official duties with willful disregard for human life in connection with her actions on the evening of September 25, 2007, including her apparent irresponsible refusal to abide by the prior practice of the Texas Court of Criminal Appeals in order to receive the appeal of Michael Richard, which conduct may have resulted in Mr. Richard's deprivation of life without due process of law as guaranteed by the Fifth Amendment to the Constitution of the United States and Section 19, Article I, Texas Constitution, by means of a potentially unlawful execution by lethal injection, and in the embarrassment of the State of Texas in a manner that casts severe doubt on the impartiality of the Texas Court of Criminal Appeals and the entire criminal justice system of this state.

(b) The committee shall submit a report of its findings to the Speaker of the House and the full House of Representatives as soon as reasonably practicable, but not later than the 90th day after the date the committee is appointed. If the committee recommends impeachment of the judge, the report shall contain a draft of articles of impeachment.

SECTION 3. POWERS; ADMINISTRATION. (a) The committee shall meet at the call of the chair and may meet in executive session if approved by a majority of the members of the committee.

(b) The committee has all the powers granted to a standing committee under the Rules of the House of Representatives and under Subchapter B, Chapter 301, Government Code, including the power to issue process to procure testimony or other evidence.

(c) On the request of the committee, the House of Representatives or the Texas Legislative Council shall provide the staff necessary to assist the committee in carrying out its duties.

(d) The operating expenses of the committee shall be paid as determined by the Committee on House Administration.

SECTION 4. EXPIRATION. This resolution expires and the House Special Committee on Impeachment ceases to exist on January 1, 2010.

Ethicists Call for Sharon Keller's RemovalEthicists Call for Sharon Keller's RemovalScott CobbFiled April 20, 2009 with the Texas State Commission on Judicial Conduct by two dozen of the nation's leading judicial ethicists. They call for Keller's removal saying "her egregious misconduct 'casts public discredit upon the judiciary [and upon the] administration of justice.'" They conclude, "These violations are sufficiently serious to require Judge Keller be removed from the bench."

Urge Them to Send HB 2267 to the Floor of the House for a Vote.HB 2267 Would Prohibit Death Sentences Under the Law of Parties.

Sample Message (change it to your own words) “Hello, I am calling to urge Representative X to vote in the Calendars Committee to send HB 2267, the Law of Parties bill, to the floor of the House for a vote. HB 2267 would require separate trials for co-defendants in capital trials and would prohibit the state from seeking the death penalty for people who do not kill anyone but are convicted under the Law of Parties. I do not believe it is fair to sentence someone to death, like Kenneth Foster was, if they did not kill anyone. Thank you”.

The Law of Parties allows people who "should have anticipated" a murder to receive the death penalty for the actions of another person who killed someone. A person sentenced to death under the Law of Parties has not killed anyone. They are accomplices or co-conspirators of one felony, such as robbery, during which another person killed someone.

Please contact your own state representative and at least some of the committee members on the list below. You can find out who your own representative is at: http://www.fyi.legis.state.tx.us

Tuesday, April 21, 2009

The Law of Parties bill today passed the Texas House Committee on Criminal Jurisprudence.

HB 2267 in the Texas Legislature would prohibit the state from seeking the death penalty for people in Law of Parties cases, which is a law that allows non-killers to be sentenced to death for the actions of another person. Kenneth Foster was sentenced to death under the Law of Parties before his death sentence was commuted to life in 2007 by Governor Perry.

Rep Hodge's bill was approved in the Texas House Committee on Criminal Jurisprudence on April 21. It now goes to the Calendars Committee.

We have a lot of work to do to get the bill passed by Calendars and through the entire House, but today's approval was a major victory. The victory was made possible by the efforts of many people, including Rep Hodge, Rep Dutton, their staffs, and the many people who attended the Lobby Day Against the Death Penalty on March 24 to visit legislators in person or called or emailed legislators urging them to pass the bill.

Special thanks go to all the family members of people on death row under the Law of Parties who came to Lobby Day or who testified in committee for the bill. This victory belongs to you!

Monday, April 20, 2009

On June 2, 2009, the 200th execution under Texas Governor Rick Perry is scheduled to take place. Since he became governor of Texas in December 2000, Perry has signed more execution orders than any other governor in U.S. history.

Terry Hankins is scheduled to be the 200th person executed under Rick Perry. If he or anyone scheduled before him receives a stay of execution, then the 200th person will be the next person on the list. We hope everyone receives a stay!

The Texas anti-death penalty community asks people around the world to focus your attention on Texas and join us in protesting the 200th execution carried out under Rick Perry. Altogether, Texas has executed 436 people since 1982, including 152 under former Texas Governor George W. Bush.

How you can protest the 200th execution under Texas Governor Rick Perry

1) On the day of the 200th execution, call Governor Perry at 512-462-1782 and tell him your opinion on the death penalty. If you live in the U.S., you can use his the form on his website to email him. We suggest you both call him and email him. If you live outside the U.S., you can fax him at (512) 463-1849 or send him a letter in the postal mail. We would like to hand deliver letters to him, so please send your letter to the address below and we will deliver it to Rick Perry: You can send us your letter to Perry for us to deliver whether you live in the U.S. or another country.

Texas Moratorium Network

3616 Far West Blvd, Suite 117, Box 251

Austin, Texas 7831

2) Attend a protest in your city either on the day of the 200th execution or sometime before. There are protests already planned. If a protest is not scheduled yet in your city, you can organize a protest. If you live outside the U.S., organize a protest at the nearest U.S. Embassy or Consulate. Send us a photo or video of your protest by email and we will post it on this website and on YouTube. Or you can upload your photos and videos yourself to our social networking site or directly to our group on YouTube. If your organization is planning a protest, please let us knowso that we can list your protest on this site.

3) Sign the petition and add your name to the list of people who are raising their voices to protest the 200th execution under Texas Governor Rick Perry.

4) Donate a symbolic 200 cents towards helping us organize against the Texas death penalty. That is one penny for every execution under Rick Perry. We are asking everyone to donate $2, which is the equivalent of 200 pennies. You are welcome to donate more if you can afford it, but everyone can afford to donate $2.

The artwork at the top of www.protest200executions.com is by German artist Jasmin Hilmer and represents the isolation of Texas in the world community. While most of the rest of the world, including all of Europe, have turned their backs on the use of capital punishment, Texas continues to execute people at a shocking rate.

Wednesday, April 15, 2009

We have heard that the House Committee on Judiciary and Civil Jurisprudence will hold a public hearing on the proposal to impeach Judge Sharon Keller on Monday, April 27.

This resolution, HR 480 by Lon Burnam, would create a select committee in the House to investigate further whether Sharon Keller should be impeached for her refusal to accept an appeal 20 minutes after 5 PM for a person on the day of his execution.

If you believe that Keller should be impeached, please plan to attend and fill out a Witness Affirmation form in support of HR 480. We will announce the time and room number of the hearing as soon as we confirm those details, but put April 27 on your calendar as a day to go to the capitol and sign a witness affirmation form in support of HR 480. It only takes five minutes to fill out the form, but you have to be there in person to fill it out and turn it in.

Terri Been – Sister of Texas death row prisoner Jeff Wood, convicted under Law of Parties.

The CEDP is hosting a national tour, "Live From Death Row," featuring the voices of death row prisoners, live from their prison cell. Death sentences de-humanize the condemned, justifying the state-sponsored murder of the poor, the innocent and people of color. Death rows isolate those sentenced to die, denying them human contact and hope for justice. In our "Live From Death Row" tour, the voices of death row prisoners will reach from behind the walls to share their stories of loss, injustice, struggle, and hope for an end to the death penalty. At a time when the national chorus against the death penalty continues to grow, these voices are critical for the movement on the outside. Live From Death Row Tour stops all over the country have drawn hundreds of people and featured live calls from death row prisoners like Mumia Abu-Jamal in Pennsylvania and Troy Davis in Georgia. Don't miss your chance to be a part of a such emotionally powerful and socially important event!

"These are America's condemned, who bear a stigma far worse than 'prisoner.' These are America's death row residents: men and women who walk the razor's edge between half-life and certain death." —Mumia Abu-Jamal, Live From Death Row

Kinky Friedman sent an email out today announcing that he is running for the Democratic nomination for governor of Texas in the 2010 primary election. One of his positions is that Texas should abolish the death penalty.

Kinky was one of almost 1900 people who signed Texas Moratorium Network's complaint against Sharon Keller that we turned in to the State Commission on Judicial Conduct in 2007. The Commission charged Keller with misconduct and her trial starts on August 17 in Austin. Kinky also signed the Texas Moratorium Network petition for a moratorium on executions in 2005.

We will be watching to see if Tom Schieffer endorses a moratorium on executions. Schieffer has formed an expoloratory committee to seek support for a run for governor in the 2010 Democratic primary.

The Texas Democratic Party platform has endorsed a moratorium on executions since 2004 when TMN's Scott Cobb was elected to the platform committee at the state convention and wrote a new section on capital punishment in the party platform.

Monday, April 13, 2009

The Cleburn-Times Review in Johnson County Texas has an article in today's paper that says that senior district judge C.C. “Kit” Cooke, who presided over the trial of Richard Wayne Jones, believes Jones may have been innocent. Jones was executed in 2000 in Huntsville.

The third case, in which Richard Wayne Jones was convicted and sentenced to death in Fort Worth in 1987, bothers Cooke to this day.

It contributed to his belief that the death penalty is assessed too liberally in Texas.

Jones, he said, might have been innocent of the crime for which he was executed in 2000.

“Richard claimed innocence forever,” Cooke said. “To be honest, that’s when I started having some doubts about trying capital murder cases. I tended to believe his story. The facts were that he’d been to the penitentiary two or three times. According to his statement [which Jones said was coerced], he decided he was going to kill somebody when he got out.

“He set up a crafts store in Arlington. A petite lady came in to buy yarn so she could knit her brother a sweater. [Jones] picked her out at random. He took her out and raped her and murdered her, then set her on fire.

“When there’s a fire, there is no DNA. So there was no way for the jury to know if he raped her. The jury convicted him. All the way through his appeals, he said he was innocent. An author in England [Wendy Schmid-Eastwood] took up his cause. She wrote a book [“Twisted Truth”] that exerted a lot of influence. She funded his appeal.

“He had the best lawyers, Jack Strickland and Bill Lane at trial level, and I appointed Allan Butcher on appeal. All three were top-notch lawyers who had tried people who were guilty.

“Lane especially did not think he was guilty, and Allan had some real doubts. I got a letter from an inmate saying we were killing the wrong guy, though you always look at those things with a jaundiced eye.

“The case languished a long time [14 years]. Sharon Wilson was the prosecutor. She went to Huntsville for the execution. Richard looked at her and said, ‘Sharon Wilson, you’re killing the wrong man.’ ”

Cooke said he did well by Jones.

“Did I do everything I could? Yeah,” he said. “I’m convinced he had the best lawyers. I did have some doubt [about Jones’ guilt]. I would have been more comfortable if he could have been locked away for life with no parole.”